By Gretchen Schuldt
A defendant has the right to present a case at trial even if a judge thinks there is enough evidence to decide without it, the State Supreme Court ruled last week.
“We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial,” Justice Daniel Kelly wrote in a 4-2 decision.
Chief Justice Patience D. Roggensack and Justice Annette Kingsland Ziegler dissented, saying that Milwaukee County Circuit Judge Christopher Foley committed only a “harmless error” when he did not allow Mr. K a chance to present a case to contest the state's contention that he was an unfit parent.
Justice Rebecca Dallet did not participate in the case.
Mr. K testified under direct examination by the district attorney’s office and under cross examination by his own lawyer, Roggensack wrote. There is not a reasonable probability that the outcome of the case would have been different if Mr. K had been allowed to put on his own case, she said.
The court’s ruling reverses both Foley and District 1 Court of Appeals Judge Timothy G. Dugan, who upheld Foley’s decision.
By Margo Kirchner
An expunged operating-while-intoxicated (OWI) conviction can be counted as a prior offense when a defendant is prosecuted for a subsequent OWI, the Supreme Court of Wisconsin held last week.
Wisconsin law permits expunction of a criminal record after successful completion of a sentence if the defendant was under age 25 at the time of the offense, the maximum term of imprisonment for the offense is six years or less, and the judge ordered expunction at sentencing after finding that society would not be harmed by that result.
Upon successful completion of an expunged sentence, the clerk of court seals the case and destroys the court records. Expunction is intended to benefit a young offender, providing a second chance or a fresh start, according to the Supreme Court.
In Wisconsin, a first OWI offense is deemed a civil, not criminal, charge. Repeat offenses are criminal matters, and penalties increase with the number of offenses.
In 2011, Justin Braunschweig was convicted of a first OWI offense in Jackson County Circuit Court, and the judge ordered expunction.
Five years later, Braunschweig was arrested for driving while intoxicated with a blood-alcohol content of 0.16. The state relied on Braunschweig’s expunged 2011 conviction as a prior offense, charging Braunschweig with criminal misdemeanor, rather than civil, OWI and prohibited-alcohol-content (PAC) offenses.
Braunschweig argued that his expunged conviction could not be counted and that he should not have been charged criminally. He lost the argument in the trial court and at the Wisconsin Court of Appeals.
Had Braunschweig’s 2011 conviction not been expunged, it unquestionably would count, said the Supreme Court. The question before the Court was whether an expunged conviction counts.
The Court held that it does. Justice Annette Kingsland Ziegler wrote for the unanimous Court.
By Margo Kirchner
After multiple hearings and studies, the Wisconsin Supreme Court has denied a long-pending petition seeking appointment of counsel for low-income people in civil cases that affect the litigants’ “basic human needs.”
Unlike defendants in criminal cases, litigants in civil cases generally do not have any right to counsel.
Back in September 2013, John Ebbott and Thomas Cannon, then the executive directors of Legal Action of Wisconsin and the Legal Aid Society of Milwaukee, respectively, asked the Court to fund a pilot project testing the appointment of counsel in civil cases and to adopt a new court rule requiring appointment of counsel in civil cases when “necessary to ensure a fundamentally fair hearing in a court proceeding that will affect the litigant’s basic human needs.” Basic human needs included “sustenance, shelter, heat, medical care, safety, and child custody and placement,” Ebbott and Cannon said.
The Court had denied a similar rule petition previously, saying that “the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.” The Wisconsin Access to Justice Commission (WATJC) later developed a pilot project to test civil appointments, but the State Bar of Wisconsin declined to fund it.
The WATJC, a nonprofit organization created by the Wisconsin Supreme Court at the request of the State Bar of Wisconsin, aids the Court in expanding access to the civil justice system for unrepresented, low-income Wisconsin residents. Providing civil legal aid can assure fairness for those involved in the justice system, reduce court costs, and strengthen communities, according to the organization.
The 2013 petition sought funding of the pilot project by the Supreme Court.
The Court discussed the petition at an open administrative rules conference in December 2013 but held off decision at that time.
The WATJC, in an October 2014 letter from its then-president, retired Milwaukee Municipal Court Judge James Gramling, suggested that if the Court chose not to fund and implement the pilot project it could ask the Wisconsin Legislature to create a legislative study committee to examine “the costs, benefits, scope, and revenue options” of an appointed-counsel plan for low-income litigants in civil cases involving basic human needs.
The Court discussed the petition again in December 2014. Then, over a year later, in January 2016, the Court formally requested creation of a study committee. The Joint Legislative Council agreed, creating the Study Committee on Access to Civil Legal Services.
The Committee met from July 2016 through February 2017 and after consideration of the issue recommended three bills, which the Joint Legislative Council passed on to the Legislature. One bill encouraged several state agencies to allocate federal block grant money for civil legal aid to qualified individuals. Another proposed creation of an interagency council to evaluate how improved access to civil legal services could further the goals of the agencies. And the third allowed district attorneys and their deputy and assistant district attorneys to provide pro bono legal services to low-income persons or to nonprofits as long as the services did not conflict with the interests of the attorney’s county — presumably increasing the number of attorneys providing legal services to the poor.
The bills were introduced in the 2017-18 legislative session, but died.
The Court, in its order this month, said the conclusion of work by the Joint Legislative Council study committee made it appropriate to dismiss the rule petition.
No pilot program, no rule change, no legislation from the study committee’s work.
“The Court’s order brings this petition to a conclusion — but not the effort to give low-income litigants a shot at a fair result in court,” Gramling said in an email. He remains on the commission and – full disclosure – is a WJI Board member. “Our Commission will continue to present ideas to the Supreme Court for ‘expanding access to the civil justice system for unrepresented low-income Wisconsin residents’ — the mission given us by the Court when it created the Commission.”
By Margo Kirchner
The Wisconsin Supreme Court last week approved felony charges against an adult for conduct allegedly committed when he was eight or nine years old – too young to be accused of juvenile delinquency.
In likely one of his last opinions before his term ends, Justice Michael J. Gableman wrote that a defendant’s age at the time he is charged, not his age at the time of the underlying conduct, determines how charges can be brought.
Justice Ann Walsh Bradley, in a concurring opinion, disagreed with Gableman’s reasoning. She said it was “absurd to conclude the legislature intended that criminal liability can attach for acts engaged in by children ages zero-ten. The majority’s conclusion to the contrary defies the purpose and structure of our statutes, as well as the rationale of prior case law.”
As noted by the Court, misconduct of a child under 10 years old generally is treated as a case of a juvenile in need of protection or services (JIPS), misconduct of a child aged 10 through 16 generally is addressed as a matter of juvenile delinquency, and misconduct of someone 17 or older is charged in adult court. Prior case law allowed for the charging of some JIPS-age conduct as juvenile delinquency, and statutes delineate the process for moving cases between juvenile court and adult court.
But until Friday the law did not clearly provide that conduct committed when a person was of JIPS age could be prosecuted years later in adult criminal court.
The state charged Shaun Sanders in adult court with four counts of misconduct involving his younger sister; at the time of prosecution Sanders was 19 years old. Count one charged that during a period of time beginning when Sanders was eight or nine years old he had sexually assaulted his sister, then six or seven, by having her lift her shirt for what Sanders called a “peek.” The jury acquitted Sanders of that charge but convicted him of sexual assault, incest, and child enticement for misconduct with his sister that occurred when Sanders was between 14 and 18 years old.
Sanders believed that admission of the count one allegations and evidence impacted the jury’s verdict on the other counts. He argued to the Supreme Court that his attorney was ineffective for not seeking dismissal of count one based on his JIPS age at the time of the alleged conduct.
The court found that any motion to dismiss count one would have been meritless. “The defendant’s age at the time he was charged, not his age at the time he committed the underlying conduct, determines whether the circuit court has statutory competency to hear his case as a criminal, juvenile delinquency, or JIPS matter,” wrote Gableman.
According to the Court, the six-year statute of limitations for most felonies, the need for the state to prove intent for many crimes, and constitutional protections against intentional delays provide sufficient safeguards for defendants like Sanders.
Bradley, joined by Justice Shirley S. Abrahamson, agreed that Sanders’s attorney was not ineffective because the law regarding prosecution of JIPS-age conduct in adult court was previously unclear, but Bradley called the majority’s logic “out of step” with the law governing children’s liability. She noted that laws addressing child misconduct were designed to treat the child’s condition, not punish. Moreover, she said, by statute a child under age seven is “‘conclusively presumed’ to be incapable of negligence,” yet the Court ascribes criminal intent to the same-aged child.
Further, she said the majority misread prior case law in reaching its decision and noted the “safeguards” listed in Gableman’s opinion did not protect Sanders.
She urged the State Legislature to reexamine the law and rectify the majority’s decision.
By Gretchen Schuldt
Thirty-six circuit court judges from 18 Wisconsin counties are together publicly supporting a proposal to increase pay for appointed defense lawyers.
"As trial judges, we experience, on a daily basis, the impact that the underfunding of indigent criminal defense has on the quality and integrity of our criminal justice system," Milwaukee County Circuit Judge Glenn H. Yamahiro wrote to the State Supreme Court. Yamahiro was the main author of the letter and was joined by the author judges.
"These impacts often impede our ability to function effectively and efficiently. We have observed a decline in the quality of representation provided to indigent defendants. Many experienced lawyers have discontinued accepting public defender appointments out of economic necessity. As a result we face an increasing number of inexperienced or underqualified lawyers representing indigent defendants in serious criminal matters."
Yamahiro and the 35 other judges were commenting on a petition pending before the Supreme Court that seeks to raise from $40 an hour to $100 an hour the amount paid to lawyers appointed by State Public Defender's Office (SPD) to represent clients who cannot afford to hire a lawyer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest. The Supreme Court will hold a public hearing on the matter May 16.
"It is imperative that our Supreme Court exercise leadership to address the Constitutional Crisis...because the executive and legislative branches of government have failed to address this problem...over the past 40 years," he said.
"We have seen an increasing number of requests for the appointment of new counsel and ineffective assistance of counsel claims," the letter says. "Cases that we are required to continue based upon ineffective assistance of counsel...have negative impacts on crime victims. In many instances, victims often have to endure additional proceedings such as a resentencing or even retrial, in cases that should be closed. ... We believe that it is beyond dispute that the criminal justice system operates at its best when each side has access to quality representation."
The court must take leadership and address the because the executive and legislative branches have failed to do so over the past 40 years, he said.
The 35 other judges signing are:
By Gretchen Schuldt
The number of lawyers in Wisconsin willing to defend indigent clients for $40 an hour dropped 16% in five years, the head of the State Public Defender's office told the Supreme Court.
"Considering the $40 rate and the cost of operating a law practice, it is unsurprising that there are fewer attorneys willing to accept SPD (State Public Defender) appointments," State Public Defender Kelli S. Thompson wrote to the justices.
There were 1,099 attorneys who accepted the cases in 2012 and 921 in 2017, a decline of 178, she said.
Thompson wrote to provide input on a petition pending before the court to raise from $40 an hour to $100 an hour the amount paid to lawyers appointed by SPD to represent clients who cannot afford to hire a lawyer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest. The Supreme Court will hold a public hearing on the matter May 16.
Thompson did not specifically endorse the $100 rate but wrote "the $40 per hour rate is inadequate and should be increased."
The $40 rate, the lowest in the nation, "coupled with difficulties in recruiting and retaining being attorneys from all areas of practice to locate in more rural parts of Wisconsin, there are negative effects on the rights of defendants, victims, the efficiency of the court system, and the budgets of both County and state-based criminal justice system partners," Thompson said.
In northern counties, there has been a "steady increase" in the number of SPD appointments made to lawyers who live outside the county where the case is filed.
In fiscal year 2012, Thompson said, 28% of Ashland County appointments went to out-of-county lawyers; in 2017 that figure was 73%. In Bayfield County, out-of-county lawyers get 99% of appointments.
"As a result of the shortage of private bar attorneys willing to accept appointments at the $40 per hour rate, the justice system is put on temporary hold (affecting defendants as they wait in custody or with bail restrictions, prosecutors with open cases, victims waiting for resolution, and court calendars at standstills)," she wrote.
On April 6, the State Public Defender Board unanimously approved the following statement:
In Marathon County, it takes an average of 80 contacts and 17 days to appoint a private attorney. In Price County, it takes an average of 33 days to appoint a private lawyer; in Appleton, it takes 17 contacts to find a lawyer, she said.
"In three difficult cases, it took 302, 261, and 260 contacts to find an attorney," she said.
The Ashland County office requires 39 contacts per case and an average of 24 days to appoint a lawyer, she said. The Ashland County office handles cases in Ashland, Bayfield, and Iron Counties.
"The lack of availability in rural areas is beginning to have an indirect effect in Milwaukee as more and more attorneys from urban areas are appointed to cases in rural counties," she said.
Her office has made 18 separate formal attempts to increase the $40 per hour rate since 1999 , Thompson said.
"SPD budget requests have not been included in the budget introduced by the Governor, and none of the stand-alone legislation has received a public hearing or vote by the Legislature or its standing committees," she said.
During 2015-17, SPD paid out $41.8 million in attorney compensation, based on a $40 rate. Increasing the rate to $100 per hour would cost an additional $62.6 million, she said.
During the last legislative session, she said, the SPD proposed a tiered system in which hourly pay would increase with the difficulty of the case. That would have cost about $20.2 million over a biennium when fully implemented, she said.
Below are excerpts from additional comments submitted to the Court. The deadline to submit comments was Tuesday.
As a judge, I have learned that the relative unavailability of even minimally "adequate" private attorneys who are willing to take SPD appointments results in substantial inefficiencies in the criminal justice system. The appointment of private attorneys for SPD cases is often delayed because the local SPD office has been forced to seek attorneys from an ever-widening geographic area. I have also learned that a downstate attorney's willingness to take appointments in the Northwoods is not necessarily commensurate with the attorney's skill level. Late last year I was compelled to grant a postconviction motion for withdrawal of a plea in a high-profile felony prosecution due, in part, to inadequacies in the SPD-appointed attorney's handling of the matter.
In my judgment, the upshot of all this is that, at the current rate of compensation paid to private attorneys appointed by the SPD, the number of properly qualified private attorneys willing to accept SPD appointments in my county is woefully deficient. – Oneida County Circuit Judge Michael H. Bloom
The abysmal SPD rate guarantees only three types of lawyers now take appointments on anything like a regular basis: inexperienced new grads; high-volume attorney juggling unmanageable caseloads in an effort to make ends meet; and competent, experienced saints (who are few and who are unfairly financially stressed). ...
At least in Milwaukee County, complex felony cases are routinely relayed through a series of appointments. Two, three, four, and five attorneys are often appointed to one case, through a series of the new-grad or volume-juggler attorneys until the case finally lands in the hands of one of the few competent, experienced attorneys who can spot and litigate issues, hearings, trials, and who can responsibly and ethically deal with the special challenges of representing limited or challenged (and often challenging) clients.
What a waste. Defendants are held in custody longer; more court hearings are required with more pay to attending judges, clerks, court reporters, deputies, prosecutors, jailers, and defense attorneys. It's absurd. – Kathleen M. Quinn, Milwaukee
By Gretchen Schuldt
Six Milwaukee County Circuit Court judges and two court commissioners, all of whom work in Children's Court, are supporting a petition asking the State Supreme Court to increase the amount paid to lawyers representing criminal defendants who are too poor to afford to hire lawyers.
Few lawyers are willing to accept the $40-an-hour rate the State Public Defender's Office (SPD) pays to lawyers it appoints when the office has excessive caseloads or conflicts of interest, the eight court officials wrote in a joint letter. The petition seeks a $100-an-hour rate. Tuesday was the last day to submit comments. The Supreme Court will hold a public hearing May 16.
A seventh Milwaukee County circuit judge, Pedro A. Colon, wrote separately.
The joint letter said almost all parents subject to involuntary termination of parental rights actions are eligible for public defender representation, the joint letter said.
"The lack of attorneys able to accept the current hourly rate leads to lengthy delays as trials are stacked and then adjourned. This means that vulnerable children remain without permanent homes for increasing lengths of time," the eight wrote.
In delinquency cases, they said, the paucity of willing lawyers leads to delays that "negatively impact both juveniles and the victims of their offenses," the officials wrote. "The quality of representation afforded to the juveniles can also vary greatly. These issues with both the quantity and quality of representation are a direct result of the low reimbursement rates."
"The seriousness of these issues has only increased over time," they said. "Unchecked by this court, they threaten to undermine our ability to provide due process to the litigants who appear before us."
The six judges who signed the letter are Lindsey Grady, Jane Carroll, M. Joseph Donald, Christopher Foley, Gwendolynn Connolly, and David Feiss. The two court commissioners are Julia Vosper and Katharine Kucharski.
Colón, in his letter, noted that the rate has not increased in the 24 years he has been practicing law.
"Such a low rate has the effect of creating a system where the rights of accused are compromised. The collateral cost of this is unnecessary incarceration and post-conviction motions which ultimately cost the legal system legitimacy and the taxpayers more."
"The seriousness of these issues has only increased over time." - Eight Milwaukee County court officials
Colon said his courts, which have included Children's Court, civil/probate court, and general felony court, have relied heavily on SPD-appointed counsel.
"The inadequate hourly rate has the effect of putting stresses on the legal system that ultimately cost the state more money," he said. "When appointed counsel does not have adequate time to prepare for sentencing the result is unnecessary supervision or even more incarceration than required in particular situations. It also causes experienced attorneys to decline representation in complex felony cases and forces the state public defender to appoint whatever attorney will accept the appointment regardless of ability to manage the case. Less experienced attorneys are bound to overlook potential issues thereby increasing the likelihood of ineffective assistance of counsel claims."
Dunn County Circuit Judge James M. Peterson also wrote in support.
""In my opinion, the effective administration of justice necessitates increasing the hourly rate for private attorneys accepting public defender appointments," he said.
La Crosse County Circuit Judge Scott L. Horne said that in his County, he said "there will be 30-50 defendants at any given time whose cases are on hold because of the inability of the Public Defender's Office to identify attorneys willing to accept an appointment. Many of these individuals are held in custody as a result of an inability to post a cash bond, some for two-three months or longer. Obviously, the impact is felt in the denial of the Sixth Amendment right to counsel, the cost of excess incarceration borne by the county, denial of victim's right to a reasonably prompt disposition, and risk to the community posed by high risk individuals who may be released in large part due to a jail population consistently in excess of capacity."
Circuit Judge Gloria L. Doyle, also of La Crosse County, said she stopped taking public defender cases as a lawyer in the 1990s because she was unable to cover overhead costs.
"Criminal defendants are guaranteed the right to counsel under the sixth amendment. This right is jeopardized by the extremely low compensation rate," she wrote. "It has become a lengthy process to secure private counsel for public defender cases, jeopardizing justice."
Below are excerpts from additional comments, including those from two prosecutors, submitted to the Court.
I want to point out that the current private bar rate for appellate attorneys of $40 an hour is wholly inadequate.… Those private bar attorneys who do take appointments from the State Public Defender are paid nothing until the conclusion of the appeal unless interim payments are requested.
Unlike cases in the trial court where a case may be concluded in three to six months, an appeal can take from one to two years to resolve. One key difference between appeals and trial court work is that transcripts must be prepared, and often criminal law appellate advocacy requires going back to the trial court before proceeding to a direct appeal. – Nicholas C. Zales, Milwaukee
Early in my career, I took many appointments.… While the experience was great for me, it wasn't always great for or fair to my clients. Their lives and liberty were at stake, and they had a lawyer training on the job. I recall a couple cases, were despite my best efforts, I overlook some pretty obvious legal issues. One in particular resulted in a conviction and eight-year prison sentence. A better and more experienced lawyer would have caught that mistake at the trial level. Thankfully, that client's post-conviction attorney did discover and correct that mistake. But my client spent a year in prison for this crime before the Court of Appeals vacated his conviction.
His case exemplifies the problems created by Wisconsin's current indigent defense system. One of our fellow Wisconsinites had to spend a year in prison for a crime he should never have been convicted of committing. He did so because he didn't have the effective assistance of counsel. That should be reason enough to prevent similar mistakes from happening in the future. But that year in prison also called cost the state over $30,000. So the cost of providing qualified and competent counsel won't just aid in preventing injustices like what happened to my client. It likely will save the state money in the long run. – Joshua D. Uller, Milwaukee
As I am sure you are aware, Wisconsin's current rate of $40 per hour is the lowest in the country. This makes it difficult for the State Public Defender to find attorneys willing to take these cases. As a result, some defendants are forced to spend excessive periods of time in jail prior to disposition of their cases, through no fault of their own. These individuals are entitled to effective representation that does not raise the possibility of a conflict of interest – especially a motivation to settle quickly and/or without adequate investigation, regardless of the client's wishes – that may arise from the fact that their attorney's costs are not covered by the current rate. – Molly Collins, deputy director, ACLU of Wisconsin, Milwaukee
"The question is, will we afford the poorest people in our society who were charged with crimes a fighting chance to obtain the same justice as a wealthy person who can afford to hire a private attorney?" – Steven M. Lucareli, Eagle River
The rate for appointed counsel must be raised in order to protect the integrity of the criminal court process and more importantly to provide the Constitutional right of an attorney to those who are indigent. Unfortunately, in our northern community, as is rampant throughout the northern region of Wisconsin, too many indigent defendants have cases delayed for weeks, which turn into months until an attorney can be appointed. A good share of these indigent defendants remain in custody while the process of locating an attorney who accepts the current nominal/de minimis fee. This also impacts the rights of victims to have the cases resolved in a timely manner, and lends further frustration in cases involving a child victim. – Ruth D. Kressel, assistant district attorney, Ashland County
I typically accept appellate cases from Waukesha, Milwaukee, Racine, Walworth and Kenosha counties. During the past month, I have been offered cases from Fond du Lac, Sheboygan, and Outagamie counties because there are not enough attorneys to take those cases. – Sara Roemaat, Pewaukee
The issue before the court is one of equal access to justice, regardless of a person's ability to pay for that justice. The question is, will we afford the poorest people in our society who were charged with crimes a fighting chance to obtain the same justice as a wealthy person who can afford to hire a private attorney?
The needs of poor criminal defendants are not being met.… It is an embarrassment to me to be part of a system that has such little regard for the legal needs of poor people charged with crimes. If we leave this issue to the Legislature to correct... I do not believe anything will change anytime soon. If the Legislature hasn't done anything in 34 years, why would we expect anything different now? – Steven M. Lucareli, Eagle River
If the rate continues to remain unchanged, fewer and fewer lawyers will take appointed cases. The consequences to the criminal justice system will be catastrophic – people who are presumed innocent will remain in jail without representation for months, judicial calendars will become nightmarish, and victims will not have any resolution.…
On the ground level the system is imploding...c – Anthony D. Cotton, President, Wisconsin Association of criminal Defense Lawyers, Waukesha
It's very sad that many competent and experienced criminal defense attorneys don't take SPD appointments because of the abysmally low rate of pay. It's very sad that I take only a few SPD cases, and that fact makes me feel guilty. It's very sad that a grandmother hired me a little over a year ago true represent her grandson in an armed robbery case in Marathon County after took the SPD 17 days to appoint an attorney from Milwaukee to handle the case, and the attorney had not yet talked to the client for 20 days after the appointment. It's very sad that some of the SPD cases I have taken in the last year were after the prosecutor asked me to take the cases because they were concerned that the defendants had not been well represented by the SPD private bar appointed attorneys they had just discharged. – Richard M. Lawson, Wausau
The courts not only get bogged down while it takes weeks to find an attorney to appoint on some of these cases, but they continue to be mired down as continuances and adjournments are sought throughout the case because an inadequately prepared lawyer needs to handle way too many clients to make the economics work. I will admit that I sometimes shudder when I think back on how poorly I was prepared back in my days of SPD appointments. It is not for a want of caring or compassion on the parts of the attorneys representing these clients, it is for a want of hours in a day. Oftentimes criminal defendants sit this entire time in jails that are pressed way beyond capacity. I can honestly say that nearly every time I am in front of either a judge or court Commissioner for an initial appearance, I hear numerous requests from people both in and out of the jail for an adjournment because they talked to the SPD office but don't have an attorney appointed yet. The system as a whole is bursting at the seams right now with everything but adequate funding. – Jeffrey Kippa, Appleton
There are important constitutional rights at stake and people are not getting adequate representation. – Jessical L. Trudell, La Crosse
In Manitowoc County, for instance, preliminary examinations and other hearings are frequently adjourned for lack of appointed counsel. Indigent defendants continue to be held in custody while the local SPD office tries to find lawyers to represent them.… SPD clerical staff in our county are routinely unable to find counsel for defendants awaiting preliminary examinations despite contacting, in some instances, up to 40 attorneys on their list, some with practices a two-hour drive away.
The result is not only an unjust delay affecting the rights of indigent defendants and victims of crime, but an inefficient use of scarce judicial resources. Defendants incarcerated in other counties or prison must be returned and then transported back for the adjourned hearing at county expense. Cities and counties pay overtime for police officers who are subpoenaed to appear in court only to have the hearing adjourned for another day. SPD pays an ever-growing amount of travel expenses to appointed counsel from surrounding or more distant counties. Court and DA calendars become further clogged, leading to pressure for additional prosecutors and judges. – Michael C. Griesbach, assistant district attorney, Manitowoc County
Remember public defenders also represent vulnerable older children in CHIPS (child in need of protective services) cases, those with mental illness and adults under protective placements. There are important constitutional rights at stake and people are not getting adequate representation. There is absolutely a crisis in this state and something needs to change or you will continue to lose good attorneys and it is the poor, children and vulnerable that will suffer. – Jessica L. Trudell, La Crosse
It is extremely difficult to maintain a private law office devoted to SPD cases. For the first several years of my practice, my personal income was so low that my kids and I lived on food stamps and Badger Care. I bought one of my two suits for $17 at a thrift store, because I could not afford to buy a new one. Many of my own SPD-appointed clients had a higher annual income than I did. I remarried a couple years ago, and my wife's income now enables me to continue serving the poor without requiring my family to rely on state assistance. But without her dedicated commitment to serving the poor and without her second income, I would likely still be dependent on the state feed my kids. Is it right to use the poor to serve the poor?…
The long-term costs to Wisconsin of an underfunded public defender system is the disappearance of justice from our courtrooms. If we truly believe in our adversarial system of justice, then we have to fund both prosecution and defense. Otherwise, we are merely giving lip service to an ideal that we have already abandoned. – Jeremiah J. Harrelson, River Falls
By Gretchen Schuldt
La Crosse County now has a 10:45 a.m. court session every day just for inmates waiting to get an appointed lawyer, according to defense lawyer Chris Zachar.
"Every week I watch the same shackled defendants shuffle to the podium in an orange jail uniform so they can hear the circuit judge give them them the same speech about the Sixth Amendment right to counsel superseding their statutory right to preliminary hearings, bond hearings, and the overall progress of their cases," ," Zachar wrote to the State Supreme Court.
Zachar wrote in support of a petition asking the Supreme Court to increase to $100 per hour the $40 per hour rate paid to lawyers appointed by the State Public Defender's Office (SPD) who represent clients who cannot afford to hire a laywer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest.
"These same defendants appear week after week without counsel. They plead for bond reductions and try to explain that they are losing their jobs, their homes, and their families while they wait on an attorney. Witnesses aren't interviewed, evidence isn't preserved, and the lives that these defendants are fighting to preserve fade while they sit in jail. Some of the defendants are unequivocally innocent, but because they are poor they will wait in jail everyone else."
The petition, which Zachar said he agrees with, argues that more lawyers are less willing to accept cases at $40 an hour, an amount that does not even cover overhead.
Zachar said he takes as many appointments as he can because he feels an obligation to protect the "poorest among us."
"But any single attorney taking an SPD appointment is a Band-Aid for a bullet wound. We criminalize new conduct, enforce substance abuse-related bond violations, and create new defendants at a far greater rate than I or any other lawyer in the private bar can competently keep up with," he wrote. "There are more new defendants waiting for appointments at 10:45 every time I appear. Until we have substantially more attorneys who are willing and qualified to represent indigent defendants, the problem will only get worse."
Zachar continued: "The fact that we now need a dedicated calendar to tell the poorest among us that they will have to wait indefinitely for counsel is undeniable proof that our system of justice is at a point of crisis."
The Supreme Court has scheduled a May 16 public hearing on the issue. Individual justices have expressed support for a higher pay rate, but some have also questioned whether they can simply tell the Legislature how to spend state money.
The Sixth Amendment Center, however, argued that the Court can do just that. The Center was hired by petition supporters to analyze Wisconsin's system.
"If the Court is worried about separation of powers concerns, it need not be," the Center said in "Justice Shortchanged, Part II," a report it submitted to the Court. "The Court has inherent power to ensure the effective administration of justice in the State of Wisconsin.84 Although the legislature holds the power to pass budgets, an expenditure policy that creates a financial conflict of interest in which the constitutional right to counsel is compromised cannot be allowed to stand."
The cost of a pay raise for SPD-appointed lawyers can be offset, the report said.
"The Wisconsin legislature can, for instance, work together to increase the reliance on diversion that could move juvenile and adult defendants out of the formal criminal justice system and provide help with potential drug or other dependencies," the report said. "Similarly, lawmakers can change low-level, non-serious crimes to 'citations' — in which the offender is given a ticket to pay a fine rather than being threatened with jail time thus triggering the constitutional right to counsel."
The deadline is tomorrow! Let the State Supreme Court know how you feel about raising the pay for lawyers who represent poor people in criminal cases! Submit your comments by May 1 to firstname.lastname@example.org and email@example.com or snail mail them to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688.
Below are excerpts from additional comments submitted to the Court.
Where should the money for such a race come from? A tough question for legislature that is loath to raise taxes for any reason. Perhaps a million fewer dollars worth of tax breaks for FOXCOMM would do the trick. – Sam Filippo, Saxon
Our criminal justice system is skewing dangerously, producing a growing disparity of outcomes between clients with funds to retain private counsel, on the one hand, and, on the other, those who must accept court-appointed counsel. The current low rate of pay usually results in less experienced, less skilled attorneys representing the poor and the working poor. – Christopher T. Van Wagner, president, Dane County Criminal Defense Lawyers Association
Over the years, I have gotten many calls from people who are represented by appointed lawyers. Many of the clients are concerned because they have not spoken to their lawyer, cannot reach them on the phone and don't understand the process that will dictate their fate. I look their cases up on the Circuit Court Access program, try to help them understand where they are in the process and encourage them to keep trying to reach their lawyer. Sometimes, I explain that they can ask for a new lawyer if their current lawyer is not communicating with them.
I don't know why their lawyers are not responding to their calls but I imagine the lawyers are overworked, understaffed, under supported and cannot find the time to meaningfully communicate with their clients. I understand that this is the ethical responsibility of the individual lawyer but it is also the responsibility of the government to provide constitutionally adequate counsel to those who cannot afford it. If our government grossly underpays the lawyers it provides for the poor, we will continue to see indigent clients who are under served by their overworked lawyers. – Kathleen Stilling, Brookfield
SPD-appointed lawyers were paid $35 an hour in 1978. That amount today is worth $133 per hour.
My wife Natalie and I started our law firm in Minocqua 29 years ago. At the time we were two of the youngest members of the Oneida Vilas Forest County Bar Association. Twenty-nine years later, we are still two of the youngest members of our local Bar Association. The difficulty in recruiting lawyers to our rural counties is becoming an increasing problem. One of the significant factors contributing to this recruitment problem is the unreasonably low hourly rates paid to court-appointed counsel and State Public Defender counsel. – Thomas E. Lawrence II, Minocqua
In some instances, I have seen cases where our office has approached over 60 attorneys with no interested lawyers. Recently I have seen simple, straightforward misdemeanor defendants still not have counsel for three months. Certainly more serious cases will always be more difficult to appoint, but the run-of-the-mill criminal cases should not be in that category. If these cases are nearing impossibility to appoint there is something seriously wrong with the appointment system. – Eric Maciolek, attorney, Green Bay office, State Public Defender
Furthermore, it appears as though the assigned counsel system is not a co-equal part of the SPD. That is, the antagonism between the SPD and the private bar is greater than the 6AC (Sixth Amendment Center) has witnessed in many states. The SPD does not employ contracted supervisors for the private attorneys and appears to take a ‘hands off” approach once a case is assigned to a private attorney. Worse, the state of Wisconsin has no idea of how many indigent defendants are represented by county-funded attorneys nor the amount of money spent to secure representation because no one is charged with tracking this data. Without even knowing which defendants are being defended by which attorneys, the state is unable to even begin to ensure that each and every defendant receives effective representation. – Sixth Amendment Center, "Justice Shortchanged, Part II"
Most dog groomers and bicycle mechanics here in Madison charge more than $40 per hour. It is shocking that the person who gives a poodle a haircut is compensated more than a lawyer representing an indigent defendant on first-degree intentional homicide charge. Sadly such is the case in Wisconsin. ...
I work on SPD and court appointed criminal cases because I generally enjoy the work. I am willing to bet that this is the same reason most other experienced attorneys give for continuing to take on the work. But at some point it must be recognized that the lawyer's interest in doing the work and perhaps a sense of obligation to do it, are in actuality being exploited by "the system" here in Wisconsin. – Steven Zaleski, Madison
2016 felony and misdemeanor SPD appointments handled by one attorney
I was a regional attorney manager for the State Public Defender Office for 32 years. My region covered 10 counties in Wisconsin include Eau Claire, Rusk, Barron, Pierce, Polk, Pepin, Buffalo, Chippewa, St. Croix, and Dunn counties. Many of these counties were rural and low income. It was a daily struggle to find attorneys to travel to these counties to take our cases. There was always one secretary in our office each day that would spend the entire day trying to farm out cases.… Private attorneys would consistently say it was not worth it to handle these difficult cases for $40 per hour.…
Two years ago I retired from the Public Defender Office and last year I started to take some private work from the local office. I enjoy the work, realized quite quickly that I would not be able to handle felonies effectively for the $40 rate. I immediately began getting calls from throughout the state to take cases. I receive calls from Spooner, Wausau, Ashland, Green Bay and many other locations. I am not willing to drive across the state for $25 an hour. I feel bad that these secretaries are so desperate for lawyers who will take these cases, but I just cannot afford to take these trips or handle difficult cases without support. I did not receive any payments for the first three months of business because they were so far behind in payment. I had to wonder what I would do if I were a new attorney just starting out with no income coming in. ...
When you pay a substandard rate you push people to take too many cases.
It is time that we raise this rate so that we can keep qualified attorneys on our list and they can make a living wage. – Dana Smetana, Eau Claire
By Gretchen Schuldt
Finding lawyers willing to take on criminal defense work for $40 an hour "often times takes weeks and months," according to an Ashland County judge.
"Some attorneys from out of the area have graciously agreed to take cases here," Circuit Judge Robert E. Eaton wrote to the Supreme Court. "I have had attorneys come from La Crosse, Eau Claire, Stevens Point, and River Falls to take up cases for indigent criminal defendants.
However, there are simply not enough attorneys locally who will accept cases at the rate of $40 per hour."
WJI examined felony cases filed in Ashland County in 2017 and found 105 cases where it could be determined with certainty that private attorneys were appointed by the State Public Defender's Office (SPD) to represent defendants who couldn't afford to hire lawyers.
The map below shows where lawyers hired for those cases had their offices. It also shows how many cases were handled by lawyers headquartered in each community. For example, lawyers based in Ashland handled 29 Ashland County felonies, lawyers from La Crosse, about 250 miles away, handled five. (SPD-appointed lawyers are paid only $25 per hour for out-of-county travel time.)
The Supreme Court is considering a petition asking it to increase to $100 the amount the state pays to the appointed lawyers. The Court is accepting comments on the proposal until May 1 and will hold a public hearing on the issue May 16.
Private attorneys performing the same type of indigent defense work in the federal system are paid $140 per hour.
Eaton, in his comments, said he discussed the compensation issue with a group of criminal litigants.
“A comment was made that a plumber or auto mechanic will expect to receive at least $75 an hour for his or her work,” he wrote. "The group seemed stunned by the fact that an attorney would only make $40 per hour."
The group agreed they expected an SPD-appointed lawyer to make $75 to $100 per hour.
Eaton said he has appointed lawyers at county expense even though they qualified for State Public Defender representation.
Justice requires judges to speak out on lawyer compensation petition, WJI says
“I felt it was unconscionable to have people in jail for weeks at a time without the services of an attorney,” he said. “However, making these appointments is unfair to the county taxpayers who pay the bill that should be the responsibility of the State Public Defender and unfair to the defendants because the Court does inquire of them about reimbursing the county for the cost of appointed counsel."
"I agree with the citizens I’ve interviewed," he said. "Compensation for private attorneys working for the public defender is too low and is creating a burden on the legal system and those who are required to use it.”
Judges, lawyers, citizens! Let the State Supreme Court know how you feel about raising the pay for lawyers who represent poor people in criminal cases! Submit your comments by May 1 to firstname.lastname@example.org and email@example.com or snail mail them to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688.
By Gretchen Schuldt
The Wisconsin State Bar is backing a proposal to raise from $40 to $100 per hour the amount the state pays to private lawyers hired by the State Public Defender's office to represent defendants in criminal cases who can't afford lawyers.
The SPD makes the appointments when it has too many cases or has conflicts.
"The reality of the situation is that attorneys who take these appointments at the current private bar rate are, to a large extent, providing a pro bono service," State Bar President Paul G. Swanson wrote to the State Supreme Court earlier this month. "The rate discourages experienced practitioners and the general effect of this is a diminishment of the rights of individuals underrepresented or facing delays in representation, which only serves to prejudice those rights."
The Court is considering a petition seeking the pay increase, and has set a May 16 public hearing on the matter. Some justices have expressed sympathy with the pay raise, request, but some also have questioned whether the court, absent litigation and a formal ruling, should direct the Legislature how to allocate resources.
The Court, at WJI's request, is extending the deadline to submit comments on the petition. The new deadline is May 1. The previous deadline of April 4 came before the Court even officially ordered the public hearing and directed that it be advertised.
Judges, lawyers, citizens! Let the State Supreme Court know how you feel about raising the pay for lawyers who represent poor people in criminal cases! Submit your comments by May 1 to firstname.lastname@example.org and email@example.com or snail mail them to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688.
Swanson, in his letter, said the 2017 edition of the "State Bar's Economics of Practice in Wisconsin" reported that lawyers who spend a substantial mount of their billable time working on criminal cases are paid a mean rate of $168 per hour.
Wisconsin lawyers generally spend about 35 percent of their revenues on overhead, meaning criminal law attorneys spend about $59 in that area, or far more than they are paid by the SPD.
While the pay issue is of great interest to lawyers, Swanson said, "it also continues to raise concerns over the issues of competent representation, delayed cases and extreme shortage of attorneys in certain areas of the state for these constitutionally mandated Sixth Amendment cases."
The Sixth Amendment guarantees the right to effective legal representation.
Criminal cases can also have civil justice impacts, he said.
"A criminal battery case may likely have alternative child custody, housing or workplace issues. In a domestic violence case, if the criminal case is delayed, the civil case may also be delayed," he said.
"We would ask the Court (to) join in a common voice to decry a situation which remains unaddressed since before the majority of the members of the State Bar of Wisconsin were in law school," Swanson said. "Adequate representation will help solve problems and aid in the administration of justice, thus creating a more fair and equitable system of criminal justice in the State of Wisconsin."
Help WJI advocate for justice in Wisconsin